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2022 (9) TMI 248 - AT - Income TaxPenalty u/s 271B - Assessee’s turnover had exceeded the prescribed limit u/s 44AB of the Act and he had failed to carry out audit u/s 44AB - HELD THAT:- Pune Tribunal in the case of Banwari Sitaram Pasari HUF [2013 (1) TMI 234 - ITAT PUNE] held that where assessee was engaged in online buying and selling of commodities through a commodity exchange, as a speculative activity, wherein no physical delivery was taken or given, total transactions booked with such commodity exchange could not be considered as 'turnover' for purposes of considering liability of assessee to get accounts audited under section 44AB. In the present case, in absence of the assessee causing appearance before the Revenue Authorities, either at this stage of assessment proceedings nor at the stage of penalty proceedings u/s 271B and neither at the appellate proceedings before Ld. CIT(Appeals) (It has been observed that the matter has been fixed twice before CIT(Appeals), once against the original penalty order and then subsequently again pursuant to directions of orders of ITAT and on both occasions, the assessee did not cause appearance before CIT(Appeals), and therefore, the Department did not get any opportunity to ascertain the true nature of transaction carried out by the assessee and also whether there was requirement to maintain books of accounts. Accordingly, by way of final opportunity, matter is being restored to the file of AO to decide the nature of transaction and whether the assessee was required to maintain books of accounts. The assessee is also directed to cooperate in the matter. In case of further non-cooperation on part of the assessee, AO may kindly proceed on the basis of materials available on record. Appeal of the assessee is allowed for statistical purposes.
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